FEDERAL COURT OF AUSTRALIA

Shirreff v Beck Legal Pty Ltd (No 3) [2011] FCA 604

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    This is an appeal from the judgment of Whelan FM delivered on 10 September 2010 and published as Shirreff v Beck Legal Pty Ltd [2010] FMCA 697. The Federal Magistrate dismissed an application of the appellant, (“Mr Shirreff”), to have the sequestration order made against him on 30 July 2009 set aside and to have his bankruptcy annulled. The matter was listed for the hearing of the appeal today. At the outset of the proceeding Mr Shirreff applied for an adjournment. I declined to accede to Mr Shirreff’s adjournment application for reasons that I have already given and published as Shirreff v Beck Legal Pty Ltd (No 2) [2011] FCA 603.

2    On 23 May 2011 the respondent (“Beck Legal”) wrote to a firm of solicitors that appear to have been instructed by Mr Shirreff at that time. The letter from Beck Legal of 23 May 2011 came as a response to a letter from those solicitors of 20 May 2011, requesting the consent of Beck Legal to an adjournment of the hearing of the appeal. In their correspondence of 23 May 2011, Beck Legal declined to consent to any adjournment and notified that it would seek to strike out this matter on the basis that Mr Shirreff has had more than an adequate time to prepare his appeal and has failed to comply with the orders I made on 25 February 2011.

3    Beck Legal has applied this morning, pursuant to s 25(2B)(ba) and (bb) of the Federal Court of Australia Act 1976 (“the Federal Court Act) and O 52, r 38 of the Federal Court Rules, for the appeal to be dismissed for want of prosecution, or for the failure to Mr Shirreff to comply with the directions of the Court.

4    The background to these proceedings was usefully summarised by Dodds-Streeton J in a judgment published as Shirreff v Beck Legal Pty Ltd [2010] FCA 1407. At paragraphs [8] to [14] her Honour said:

8.    As appears from the affidavit and exhibits, on 30 July 2009, Mr Shirreff was made bankrupt pursuant to the order of Registrar Luxton who, in Mr Shirreff’s absence, made a sequestration order against his estate.

9.        On 30 July 2009, Mr Shirreff applied for a review of the sequestration order made on that day.

10.    On 16 September 2009, on the application of Beck Legal (the petitioning creditor), David Lofthouse was appointed trustee of the bankrupt estate in substitution for the original trustee, ITSA.

11.     On 3 March 2010, Burchardt FM dismissed Mr Shirreff’s application for review and affirmed the 30 July 2009 sequestration order.

12.     On 17 March 2010, Mr Shirreff lodged an appeal against Burchardt FM’s decision but subsequently, on legal advice, abandoned it, in order to apply instead for annulment of the sequestration order. (The appeal was dismissed on 30 April 2010.)

13.     On 18 May 2010, Mr Shirreff applied to set aside the sequestration order made on 30 July 2009 and for the annulment of his bankruptcy.

14.        On 10 September 2010, Whelan FM dismissed that application.

5     Subsequently and on 1 October 2007, Mr Shirreff filed a notice of appeal in this court. That notice agitated the following grounds:

(1)     Details in second respondent’s affidavit not correct.

(2)    Number 28 amounts set out not correct.

(3)     Number 35, I intend to use a lawyer this time.

6    Mr Shirreff’s notice of appeal expanded further on the grounds of appeal alleging that the figure of $111,204.20 relied upon by Whelan FM as the amount owed by Mr Shirreff to unsecured creditors was not true and, further, that the creditors listed in the Trustee’s report were not correct. Mr Shirreff alleges the debts outlined in the Trustee’s report “… had been paid before I was made bankrupt” and, therefore “should not have been considered in assessing my solvency”. Consequently, Mr Shirreff alleges the Federal Magistrate erred as she ultimately relied upon information from the Trustee which was not true and correct.

7    The appeal was first listed for hearing in the sitting period of the Full Courts beginning 7 February 2011. That listing was made pursuant to the orders of Gray J made on 4 November 2010. Gray J also made orders that Mr Shirreff file and serve three copies of his outline of submissions not later than 4.00 pm, five clear working days before the hearing of the appeal, and an order for the filing and service of outlines of submissions, including an outline of submission in reply.

8    On 17 November 2010, Registrar Caporale made orders settling the index for parts A and B of the appeal book, and ordering Mr Shirreff to file and serve two appeal books by 22 January 2011. Mr Shirreff failed to file and serve appeal books by 22 January 2011 as ordered by Registrar Caporale on 17 November 2010. From the date upon which the appeal books were to be filed and served, the Court contacted Mr Shirreff on numerous occasions seeking that he comply with the Registrar’s orders.

9    On 23 February 2011, Mr Shirreff lodged one lever arch file in the Court’s Registry which purported to be the appeal book. This file did not comply with the order of Registrar Caporale made on 17 November 2010 as it was not in accordance with the index settled by the Registrar nor did it accord with O 52, r 26 of the Rules. The non-compliance was not merely a matter of form. What was filed could not be characterised as an appeal book required by the Rules. Mr Shirreff has been notified by the Court of the inadequacy of the lever arch file purportedly filed as the appeal book, however, despite that, no attempt to rectify that matter has been made.

10    Due to the failure of Mr Shirreff to comply with court orders and file and serve the appeal books, and with the trial dates imminent, I determined to list the matter for mention at 9.30 am on 25 February 2011. On that day Mr Shirreff appeared in person. Beck Legal was represented by Mr Bowyer.

11    At the mention hearing, Mr Shirreff informed the Court he was about to engage solicitors who would represent him on the appeal. He applied for the appeal to be vacated. In order that Mr Shirreff have a further opportunity to rectify his non-compliance, and in the expectation that solicitors would now be engaged to assist him, I made orders vacating the listing of the appeal for 28 February 2011 and re-listed the appeal for today. I also ordered that Mr Shirreff file and serve an appeal book substantially in accordance with O 52, r 26 of the Rules on or before 28 February 2011. I made further orders that Mr Shirreff file and serve his outline of submissions on or before 7 March 2011 and that Beck Legal do the same on or before 14 March 2011. Each party were ordered to file and serve a list of legislation and authorities on or before 23 May 2011.

12    No appeal books and no outline of submission have been filed and served by Mr Shirreff as required by my orders and once again Mr Shirreff is in significant default of court orders.

13    Section 25(2B)(ba) and (bb) of the Federal Court Act are in the following terms:

(2B)    A single judge (sitting in chambers or in open court) or a Full Court may:

(ba)    make an order that an appeal to the Court be dismissed for want of prosecution; or,

(bb)    make an order that an appeal to the Court be dismissed for:

    (i)    failure to comply with the direction of the Court; or

(ii)    failure of the appellant to attend a hearing relating to the appeal;

14    Order 52, r 38 of the Federal Court Rules provides as follows:

38. Time; want of prosecution:

(1)    Where an appellant has not done any act required to be done by or under these Rules, or otherwise has not prosecuted his appeal with due diligence, the Court may:

(a)    order that the appeal shall be dismissed for want of prosecution;

(b)    fix a time peremptorily for the doing of the act and at the same time order that upon non-compliance the appeal shall stand dismissed for want of prosecution, or subsequently and in the event of non-compliance, order that it be so dismissed; or

(c)    make any other order as may seem just.

(2)    The Court may not make an order under subrule (1) unless notice of the proposed order has been served on the appellant.

(3)    An order under paragraph (1)(b) may be varied at any time before the appeal stands dismissed for want of prosecution, and in special circumstances may be varied or revoked after that time.

15    Section 25(2B) of the Federal Court Act was considered by a Full Court of this Court in Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28. That was a decision in which the Court dismissed an appeal primarily because of the appellant’s failure to comply with the orders made by the Court, and with the Rules of the Court, requiring the preparation of an appeal book. In the reasons for judgment of Logan and Flick JJ (with whom Graham J agreed), their Honours said at [77]:

The power conferred by order 52, rule 38(1)(a) “must not be lightly exercised”: Van Reesema v Giameos (1979) 27 ALR 525 at 530 per Bowen CJ, Fisher and Lockhart JJ.

Their Honours further stated at [79] of their reasons for judgment that:

… the power to strike out an appeal is a serious step. Even in the case of an appellant who is doing little to prosecute his appeal, every effort should be made to have his appeal heard and determined in a manner consistent with the interests of the other parties and the public interest in the administration of justice.

16    In Van Reesema, to which Logan and Flick JJ referred, the Full Court identified a number of considerations relevant to the exercise of discretion under O 52, r 38, including whether the appellant had complied with court orders; whether the appellant had failed to file and serve a draft index of appeal papers as required by the rules; and public policy considerations that the business of a court be conducted expeditiously, and its rules and orders be properly complied with by the parties to the litigation.

17    Returning to the reasons for judgment of Logan and Flick JJ, after setting out the procedural steps required by the rules in order to facilitate the hearing and resolution of any appeal, their Honours said, at [63]:

The present matter of concern focuses upon those procedural steps which are aimed at ensuring a Full Court has before it, in a timely and organised manner, all documents necessary for the resolution of the appeal listed for hearing before it. Non-compliance with these rules in particular may not necessarily lead to an appeal being struck out or dismissed: e.g. Jandruwanda v University of South Australia (2003) FCA 1456. But a failure to comply with the provisions which ensure that an appeal can proceed may constitute a failure to prosecute an appeal justifying an order that the appeal be dismissed: e.g. Goldie v The Commonwealth (2004) FCA 973. Whether an order is made that an appeal should be struck out for any such non-compliance with the Rules must necessarily depend upon the facts and circumstances of each individual case, and upon a consideration of those interests relevant to the proper administration of justice.

At paragraph [93] their Honours also relevantly said:

The failure of an Appellant to attend to the preparation of an Appeal Book cannot deprive a Respondent of the opportunity to have an appeal heard and resolved as quickly and expeditiously as possible in a manner consistent with the interests of justice: Davidova v Murphy (2009) FCA 601 at [24]. Nor can such a failure deprive a Respondent of the benefits of the success he has achieved before a primary judge.

18    Counsel for Beck Legal relies on the reasons for judgment of Gray J in Mijac Investments Pty Ltd v Graham [2010] FCA 87. His Honour there, relevantly, considered an application made pursuant to s 25(2B)(bb) of the Federal Court Act. In that case, his Honour found that there had been frequent and persistent failure by the appellant to comply with directions of the court. That failure was neither contested nor explained, and there was no expression of any determination to remedy the situation. His Honour found that, in those circumstances, the ground under s 25(2B)(bb)(i) were clearly made out: at [21]. At [22], his Honour referred to the judgment of the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 and by reference to that decision, took into account case management considerations. His Honour concluded that the appellant had shown a lack of commitment to having the appeal brought on for hearing in an orderly and efficient way.

19    This appeal has, now, been on foot for nearly eight months, and Mr Shirreff has taken no steps to advance the prosecution of the appeal in the manner required by the orders made by the Court. He has frequently and persistently failed to comply with the orders made by Registrar Caporale and despite the renewed opportunity which I provided to him by vacating the previous listing of this appeal, Mr Shirreff has failed to comply with the orders I made on 25 February 2011. There has now been an ongoing failure, extending for over four months, for appeal books to be filed and served in accordance with the requirements of O 52, r 26 of the Rules. That persistent failure has occurred despite numerous reminders from the Court. No sufficient explanation has been provided by Mr Shirreff for those persistent failures.

20    He has informed the Court that he would like to go ahead with his appeal. He has said that he has tried to comply with the orders made, but in that respect, could point to no more than the filing of the lever arch file to which I have already referred. Mr Shirreff could not explain why, despite being notified of the inadequacies of the contents of that folder, no remedial action was taken on his part. It seems to me that Mr Shirreff has proceeded on the most unsatisfactory basis that he would do what he could to try and settle the proceeding, and, if that failed, he would seek the Court’s indulgence for some further relief.

21    Although I recognise that Mr Shirreff is unrepresented and suffers the disadvantage of having no legal assistance, I am not satisfied that he has done all he could have done, as an unrepresented litigant, to prosecute his case. His lack of legal representation is not a sufficient explanation for his persistent noncompliance with court orders. Despite the assurance that he gave the Court on the last occasion, that he had solicitors to engage, no solicitors have been engaged. His explanation for that failure is referred to in my reasons for judgment in declining his application for an adjournment. That explanation, for the reasons there set out, does not provide sufficient excuse. The opportunity given to Mr Shirreff on the last occasion, including by the vacation of the listing of the matter, has not advanced the prosecution on the appeal, and provides me with no confidence that, if Mr Shirreff had had more time, he would prosecute his appeal appropriately.

22    I need also to take into account any prejudice to Beck Legal. The failure of Mr Shirreff to prosecute this appeal in a timely way has no doubt resulted in Beck Legal incurring costs, including costs as a result of the loss of the previous day for which this appeal was listed, or at the very least, costs related to the preparation involved for that day. Costs have been incurred again today. Those costs have been incurred in circumstances where Mr Shirreff has been declared bankrupt, and it is likely that any costs orders already made, or any that may now be made, will not be able to be realised.

23     Mr Shirreff’s failure to abide by the orders of the Court has deprived Beck Legal of the opportunity to have the appeal heard and resolved as quickly and as expeditiously as possible, in a manner consistent with the interests of justice. It is necessary also that I take into account s 37M of the Federal Court Act. That provision requires that the Rules must be interpreted and applied, and any power conferred or duty imposed by the Rules be exercised or carried out in a way that best promotes the overarching purpose of the civil practice and procedure provisions - that is, “the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”.

24     Case management considerations of the kind raised by s 37M of the Federal Court Act were referred to by the High Court in Aon, and beyond prejudice to a party to the proceeding, those considerations also go to waste of and inefficiency to Court resources, and the prejudice to other litigants before the Court, including by the failure of parties to properly prosecute their proceedings and the resultant loss of hearing days available to the Court.

25    In the exercise of my discretion, I therefore also take into account the fact that, as a result of the failure by Mr Shirreff to comply with Court orders, two days which were listed for the hearing of this appeal have effectively been lost to the prejudice of other litigants in the Court and to the prejudice of the efficient working of the Court.

26     For all of those reasons, I am satisfied that Mr Shirreff has not prosecuted his appeal with due diligence in the manner required by O 52, r 38 of the Rules. I am also satisfied that the conduct of Mr Shirreff should result in the appeal being dismissed pursuant to s 25(2B), (ba) and (bb)(i) of the Federal Court Act.

27     Having heard the parties on the question of costs, I have determined that the cost of Beck Legal’s costs of the appeal should be paid by Mr Shirreff.

Associate:

Dated:    2 June 2011